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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

GRATIA LEGER, : CIVIL ACTION

: NO. 05-3741

Plaintiff, :

:

v. :

:

JOANNE BARNHART, :

:

Defendant. :

M E M O R A N D U M

EDUARDO C. ROBRENO, J. November 14, 2006

I. INTRODUCTION

This case involves the plaintiff Gratia Leger’s decadelong quest for Social Security benefits. After exhausting her

administrative remedies, plaintiff filed suit in this Court,

seeking judicial review of the final decision of the Commissioner

of Social Security denying her benefits. Following motions for

summary judgment by both parties, this case was referred to

Magistrate Judge Rice for report and recommendation on the

matter. After thoroughly reviewing all information in the

record, Magistrate Judge Rice issued a report and recommendation

in which he recommended that plaintiff’s motion for summary

judgment be denied and defendant’s motion for summary judgment be

granted. Plaintiff filed objections to the report and

recommendation. Based on the information provided in the record,

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Magistrate Judge Rice’s report and recommendation, as well as

plaintiff’s objections to it, the Court adopts the report and

recommendation for the reasons stated below.

II. BACKGROUND

A. Factual Background

Plaintiff Gratia Leger was born on May 31, 1959. She

worked sporadically from 1989 until 1992 in a number of

positions, including bookstore assistant manager, freelance

writer, temporary office worker, telemarketer, research

assistant, and library accessor. She has had a plethora of

injuries and medical woes dating from 1991, which have impacted

her ability to work. In addition, since 1990, she has been in 10

motor vehicle accidents, resulting in various injuries (lumbar

sprains and strains, neck injuries, whiplash, concussion, and

minor cervical sprains and strains). She also claims to have

sustained injuries (neck pain, left arm pain and numbness) when

she slipped and fell in a puddle of water at a Mississippi

supermarket in December 1997.

Leger claims that two conditions in particular prevent

her from working: fibromyalgia and vestibular dysfunction. 

Fibromyalgia is an arthritis-related “syndrome characterized by

chronic pain, stiffness, and tenderness of muscles, tendons, and

joints without detectable inflammation.” Medicine.net,

Case 2:05-cv-03741-ER Document 12 Filed 11/15/06 Page 2 of 16
 In his thorough Report and Recommendation, Magistrate 1

Judge Rice outlines Leger’s extensive medical history, including

the findings of at least 14 physicians and psychologists, all

with varying prognoses. For example, Dr. Thomas Whalen, a

rheumatologist and plaintiff’s treating physician for a number of

years, diagnosed Leger with cervical strains and sprains,

fibromyalgia, lumbar strains and sprains, equilibrium difficulty,

chronic fatique syndrome, cervical and lumbar herniated disc,

osteoarthritis and vestibular dysfunction and concluded that she

would be incapable of even low-stress work. Dr. Kenneth Shulman,

a neurologist, on the other hand, characterized her symptoms as

“inconsistent.” For a full description of each doctor’s

diagnosis, see Magistrate Judge Rice’s Report and Recommendation

at 5-12.

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Definition of Fibromyalgia,

http://www.medterms.com/script/main/art.asp?articlekey=3453 (last

visited September 14, 2006). There are no visible signs of

fibromyalgia and there is no definitive test to diagnosis it. 

Id. Vestibular dysfunction is a disturbance of the body’s

balance system in the inner ear. Rep. & Rec. at 4. It is

undisputed that Leger suffers from these two conditions. Because

of the effects of these conditions, she claims that she can walk

only a half block before pain begins, stand only a couple of

minutes, and sit for approximately five minutes before the pain

sets in. 

The record is full of medical evidence, beginning from

1991 until 2003, some of which lends credence to Leger’s

testimony on the seriousness of her conditions, and some which

contradicts her testimony. 

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B. Procedural Background

Prior to plaintiff filing suit with this Court on July

19, 2005, she pursued the applicable administrative remedies. 

She first sought Disability Insurance Benefits (“DIB”) and

Supplemental Security Income (“SSI”) on July 16, 1996. The state

agency (Pennsylvania’s Bureau of Disability Determination) denied

her application for benefits, concluding that she had no severe

impairments. On April 26, 1999, the Administrative Law Judge

(“ALJ”) remanded the case to the state agency for evaluation of

Leger’s mental impairment. After reconsideration of the

evidence, and having found no severe physical or mental

impairment, the state agency again denied plaintiff’s claims on

December 22, 1999.

On August 25, 2000, the ALJ conducted a hearing and

heard testimony of Leger (who was represented by counsel) and a

vocational expert. On November 20, 2000, the ALJ determined

Leger’s impairments were not severe, and again denied her benefit

claims. On January 16, 2002, the Appeals Council remanded the

case for further proceedings. After a second hearing, the ALJ

determined that she had severe impairments but could still

perform a range of light work. This determination, however, did

not stand; on August 18, 2003 the Appeals Council found the ALJ

failed to properly evaluate Leger’s credibility and her alleged

mental impairment, and again remanded the case, this time to a

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different ALJ.

Finally, on December 8, 2003, the newly-assigned ALJ

conducted a hearing at which Leger and a vocational expert

testified. The ALJ found that Leger could perform her past

relevant work and was, therefore, not disabled. The complaint in

the present action followed. 

III. DISCUSSION

A. Legal Standard

In reviewing the Commissioner’s final determination

that a person is not disabled and therefore not entitled to

Social Security benefits, the Court must not weigh the evidence

or substitute its own conclusions for that of the ALJ. Burns v.

Barnhart, 312 F.3d 113, 118 (3d Cir. 2002). Instead, the Court’s

determination must focus on whether substantial evidence supports

the Commissioner’s final decision. 42 U.S.C. § 405(g);

Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005). If the

ALJ’s findings of fact are supported by substantial evidence, the

Court is bound by those findings. Fargnoli v. Massanari, 247

F.3d 34, 38 (3d Cir. 2001).

B. Magistrate Judge Rice’s Analysis

After reviewing the ALJ’s determination, Magistrate

Judge Rice concluded the following, which will be discussed

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 Specifically, the ALJ stated: 2

The claimant’s statement concerning her

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below: 1) the ALJ appropriately considered Leger’s subjective

complaints; 2) substantial evidence supported the ALJ’s finding

that Leger’s functional limitations resulting from her

impairments would not preclude her from performing sedentary and

light work; 3) substantial evidence supported the ALJ’s finding

that Dr. Whalen’s opinion was not entitled to controlling weight;

and 4) it was unnecessary for the ALJ to rely on the vocational

expert’s testimony. 

1. The ALJ appropriately considered Leger’s

subjective complaints. 

The ALJ must seriously consider subjective complaints

which may support a claim for benefits, especially when the

complaints are supported by medical evidence. Smith v. Califano,

637 F.2d 968, 972 (3d Cir. 1981); Taybron v. Harris, 667 F.2d 412

(3d Cir. 1981). In order to be considered, however, the

subjective complaint must bear some relationship to the

claimant’s physical status, as demonstrated by objective medical

findings, diagnoses and opinion. 20 C.F.R. §§ 404.1526-29. 

While the ALJ considered Leger’s subjective complaints in this

case, the ALJ found that Leger’s complaints were not entirely

credible. 

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Case 2:05-cv-03741-ER Document 12 Filed 11/15/06 Page 6 of 16
impairments and their impact on her ability to

work have not been accepted in toto in light

of the degree of medical treatment required,

the reports of the treating and examining

practitioners, the medical history, the

findings made on examination, the claimant’s

assertions concerning her ability to work, and

the claimant’s own description of her

activities and lifestyle.

Tr. 25.

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Medical evidence in the record supports the ALJ’s

finding that Leger’s complaints were not entirely credible.

Several examining doctors determined that Leger was “fully

functional” and noted that her complaints were “inconsistent.” 

Rep. & Rec. at 17-18. In addition, all objective medical testing

yielded normal results with the exception of a small central disc

bulge and age-appropriate degenerative disc disease. Rep. & Rec.

at 18. 

Beyond the medical evidence in the case, the ALJ noted

other inconsistencies which weakened Leger’s credibility. These

inconsistencies included the fact that her allegedly disabling

symptoms were inconsistent with her alert, articulate, cheerful

and seemingly pain-free state at the hearing. Therefore,

although the ALJ considered Leger’s subjective complaints, the

substantial inconsistencies between her complaints and the

medical evidence merited the ALJ’s conclusion that Leger’s

complaints were not entirely credible.

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2. Substantial evidence supported the ALJ’s finding

that Leger’s functional limitations resulting from

her impairments would not preclude her from

performing sedentary and light work. 

While it was undisputed that Leger was diagnosed with

fibromyalgia and vestibular dysfunction, the mere diagnosis of an

impairment does not, in and of itself, qualify the claimant for

benefits. She must also show that functional limitations

resulting from those impairments preclude her from returning to

the workforce. Petition of Sullivan, 904 F.2d 826, 845 (3d Cir.

1990). Leger was not able to make such a showing. On the

contrary, substantial evidence pointed to the fact that she would

be able to perform light work. For example, on her application

for benefits, Leger stated that she did a variety of activities,

including grocery shopping, dusting and vacuuming the house,

singing in a church choir, playing the tin whistle, playing

computer games, gardening, driving, preparing simple meals,

writing professionally, visiting friends, and walking for therapy

on average of 30-80 minutes at a time, three times a week. Rep.

& Rec. at 17. Therefore, there was substantial evidence in the

record that she was able to perform her past relevant sedentary

and light work.

3. Substantial evidence supported the ALJ’s finding

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that Dr. Whalen’s opinion was not entitled to

controlling weight. 

Leger argued that the ALJ afforded no weight to Dr.

Whalen’s opinion that she was disabled. When supported by

medically acceptable clinical and laboratory diagnostic

techniques and consistent with other substantial evidence in the

record, a treating physician’s opinion is entitled to controlling

weight. 20 C.F.R. §§ 404.1527(d)(2). If the treating

physician’s assessment conflicts with other medical evidence,

however, then the ALJ is free to reject the treating physician’s

opinion, so long as the ALJ clearly explains her reasons for

rejecting the assessment and makes a clear record of her

decision. Jones v. Sullivan, 954 F.2d 125, 129 (3d Cir. 1991);

Rivera v. Barnhart, 2005 WL 713347 at *5 (E.D. Pa. March 24,

2005) (Giles, J.).

Substantial evidence in the record supports the ALJ’s

finding that Dr. Whalen’s opinion was not entitled to controlling

weight. Rep. & Rec. at 20. Although Dr. Whalen was one of

Leger’s treating physicians, his opinion was inconsistent with

the record as a whole. Dr. Whalen’s opinion was contradicted by

other examining physicians, who determined that Leger was fully

functional, moved with ease, retained full range of motion in her

extremities, had normal strength, coordination, sensation, mood

and affect, gait and station. In fact, Dr. Whalen appears to be

Case 2:05-cv-03741-ER Document 12 Filed 11/15/06 Page 9 of 16
 In 1997, in a form he prepared for the Commission, he 3

described her prognosis as “poor.” Rep. & Rec. at 6. Just one

year later, another physician, Dr. McNally, described Leger’s

rehabilitation potential as “excellent.” Id.

The five steps are summarized below: 4

1) If the claimant is working or doing substantial

gainful activity, she/he is not disabled. If not,

proceed to Step 2. 20 C.F.R. §§ 404.1520(b),

416.920(b).

2) If the person is found to have a severe impairment

which significantly limits his or her physical or

mental ability to do basic work activity, proceed to

Step 3. If not, the individual is not disabled for

Social Security purposes. 20 C.F.R. §§ 404.1520(c),

416.920(c).

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the only treating physician that consistently found serious

problems with Ms. Leger’s health. Furthermore, his opinion was 3

inconsistent with Leger’s own testimony that she prepared meals,

went shopping, dusted and performed a variety of other similar

activities. Therefore, the ALJ properly weighed Dr. Whalen’s

opinion in light of the record as a whole.

 4. It was unnecessary for the ALJ to rely on the 

 vocational expert’s testimony. 

The ALJ need only consider “vocational factors” when

determining whether an individual is disabled if the claimant has

first satisfied the other four factors in a five-step analysis

developed by the Social Security Administration when evaluating

disability claims. In this case, the ALJ determined that Leger 4

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3) If the impairment meets or equals criteria for a

listed impairment(s) in Appendix 1 of subpart P of Part

404 of 20 C.F.R., then the person is disabled. If not,

proceed to Step 4. 20 C.F.R. §§ 404.1520(d),

416.920(d).

4) If the claimant cannot do the kind of work he or she

performed in the past, then proceed to Step 5. If she

retains the residual functional capacity to perform

past relevant work, then she is found to not be

disabled. 20 C.F.R. §§ 404.1520(e), 416.920(e).

5) The Commissioner will then consider the claimant’s

residual functional capacity, age, education, and past

work experience in conjunction with the criteria listed

in Appendix 2 to determine whether claimant is

disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f).

 Even if Leger did reach the fifth step of the analysis, 5

her claim still fails. The ALJ was not required to include

Leger’s limitations of chronic pain and fatigue into a

hypothetical question to the vocational expert because the ALJ

had previously determined, as discussed, that those limitations

were not credibly established. Rep. & Rec. at 22-23 (citing

Rutherford , 399 F.3d at 554).

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retained the residual functional capacity to return to her past

relevant work. Accordingly, she did not survive the fourth step

in the five-step analysis to determine if one is disabled for

Social Security purposes. Therefore, it was not necessary for

the ALJ to consider the fifth step, vocational factors.5

C. Leger’s Objections to the Report and Recommendation

The thrust of Leger’s objections to Magistrate Judge

Rice’s report and recommendation is her claim that the ALJ failed

“to address the bulk of Dr. Whalen’s findings,” resulting, she

contends in a reversible error. Pl.’s Obj. at 3-4. She argues

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 In an apparent attempt to argue that Dr. Whalen’s opinion 6

should not have been discredited, Leger states that Social

Security Administration promulgated ruling 99-2p is applicable

and specifically instructs the adjudicator to recontact the

individual’s treating source. Pl.’s Obj. at 2. She claims that

SSR 99-2p was created to evaluate an individual’s potential

disability status when the disability claim is based on

fibromyalgia. However, Leger incorrectly states the purpose of

SSR 99-2p. The purpose, as stated in the ruling itself, is to

help evaluate disability claims on the basis of Chronic Fatigue

Syndrome, not fibromyalgia as plaintiff contends. No where in

the ruling itself is fibromyalgia mentioned; it appears in a

footnote which states that fibromyalgia shares many symptoms with

chronic fatigue syndrome.

 

Even if ruling SSR 99-2p is applicable to fibromyalgia

cases, it directs the ALJ to recontact the individual’s treating

physician only when there is inadequate information from which to

determine the disability status of the individual. SSR 99-2p. 

In this case, there was not a lack of evidence; it was merely

that the substantial weight of the evidence contradicted Dr.

Whalen’s opinion. Furthermore, it is important to note that SSR

99-2p does not create a different evaluation process for chronic

fatigue (or fibromyalgia) cases. Rather, it directs adjudicators

to focus on the same five step analysis previously discussed when

determining if an individual is disabled. SSR 99-2p at

Evaluation 1 (“Claims involving CFS are adjudicated using the

sequential evaluation process, just as for any other

impairment.”). 

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that the original ALJ, whose findings of the medical records were

incorporated by reference in the later ALJ’s findings, provided a

mere cursory statement regarding Dr. Whalen’s voluminous records. 

Further, she contends that Dr. Whalen’s opinion was

incorrectly rejected, arguing that the reason it relied heavily

on her subjective complaints is due to the limitations of

objective testing for fibromyalgia. Leger cites Morales v. 6

Apfel, 227 F.3d 310, 317 (3d Cir. 2000), which states that “[a]

cardinal principle guiding disability determinations is that the

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ALJ accord treating physicians’ reports great weight, especially

‘when their opinions reflect expert judgment based on a

continuing observation of the patient’s condition over a

prolonged period of time.’” (quoting Rocco v. Heckler, 826 F.2d

1348, 1350 (3d Cir. 1987)). In that case, the ALJ rejected the

treating physician’s opinion, not based on contradicting medical

evidence, but based on his own perceptions of the claimant at the

hearings. Morales also states, which Leger did not quote, that

an ALJ “may reject ‘a treating physician’s opinion outright only

on the basis of contradictory medical evidence and not due to his

or her own credibility judgments, speculation or lay opinion.” 

Id. (quoting Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999)). 

In this case, the ALJ’s decision to not give Dr. Whalen’s opinion

controlling weight was based, not on the ALJ’s own perception of

Leger at the hearings, but on substantial contrary medical

evidence. The case is therefore, distinguishable from the facts

of Morales.

In addition, Leger argues that while the ALJ and

Magistrate Judge Rice cited Leger’s testimony concerning her

ability to do various activities, such as gardening, shopping,

dusting, etc., they ignored her testimony about how she completes

these tasks. She claims that her testimony stated that her

condition negatively affects her ability to perform tasks (that

she only shops as needed, vacuums only once a week, and visits

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friends 3-4 times a month, etc.). 

Finally, Leger claims that the ALJ and Magistrate Judge

Rice completely disregarded her nonexertional impairments of pain

and fatigue in determining whether she was disabled. She cites

Burnam v. Schweiker, 682 F.2d 456, 458 (3d Cir. 1982), to support

her contention that a determination of whether an individual’s

nonexertional impairments preclude that person from performing

past relevant work is essential. Pl.’s Obj. at 7-8. In Burnam,

the Court considered the ALJ’s determination that jobs existed in

the national economy which the plaintiff could perform. To help

establish the types and number of jobs that existed in the

national economy in general for claimants with exertional

impairments, the Secretary of the Commission promulgated medicalvocational guidlines or “grids.” Sykes v. Apfel, 228 F.3d 259,

263 (3d Cir 2000). The Third Circuit in Burnam rejected the

ALJ’s reliance solely on the grids in that case because the grids

did not establish the existence of jobs for persons with both

exertional and nonexertional impairments. Accordingly, the

Burnam court held the ALJ, in analyzing the fifth factor, erred

in failing to consider if work existed in the national economy

based on both the exertional and nonexertional impairments of the

claimant. Id. 

Burnam is not applicable to the present case. The

issue in this case is not whether work existed in the national

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economy for someone with Leger’s exertional and nonexertional

impairments, but whether Leger's impairments preclude her from

performing past relevant work. Nonexertional impairments, a

factor in to be taken into account in the fifth step of the

inquiry, are only relevant if it is first concluded that the

plaintiff lacks the residual functional capacity to perform past

relevant work. See generally Sykes, 228 F.3d at 265. As

previously discussed, substantial evidence supported the ALJ’s

determination that Leger could perform her past relevant work and

Leger’s claim did not reach the fifth and final step of the

evaluative process. Instead, she failed at the fourth step: the

ALJ determined that Leger retained the residual functional

capacity to return to her past relevant work. The fourth step of

the process does not require an evaluation of nonexertional

impairments. Therefore, a determination of whether other work in

existed in the national economy which would have taken into

account her non-exertional impairments was unnecessary. 

IV. CONCLUSION

For the reasons set forth above, the report and

recommendation is adopted and approved. Upon review of the

record, it is clear that substantial weight supported the ALJ’s

determination that Ms. Leger is not disabled for Social Security

benefits purposes. Because the Court is bound by the ALJ’s

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findings of fact if those findings are supported by substantial

evidence, the ALJ’s determination stands. Accordingly,

plaintiff’s motion for summary judgment will be denied, and

defendant’s motion for summary judgment will be granted. 

An appropriate order follows.

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